Debus v Condor Energy Services Limited (No 2)
[2023] FedCFamC2G 465
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Debus v Condor Energy Services Limited (No 2) [2023] FedCFamC2G 465
File number(s): BRG 137 of 2020 Judgment of: JUDGE EGAN Date of judgment: 1 June 2023 Catchwords: INDUSTRIAL LAW - COSTS – Where Calderbank Offers made soon after commencement of proceedings – where offers rejected outright – where claim dismissed – whether application for indemnity costs ought to be granted – where appropriate order was for the making of an indemnity costs order from the date of first rejection of the First Calderbank Offer – orders accordingly. Legislation: Fair Work Act 2009 (Cth) ss. 545 and 570. Cases cited: Australian International Pilots Association v Qantas Airways Ltd (No 3) [2007] FCA 879
Australian Workers Union v Leighton Contractors Pty Ltd (No 2) [2013] FCAFC 23
Calderbank v Calderbank [1975] 3 All ER 333
Kooee Communications Pty Ltd v Primus
Melbourne Stadiums Ltd v Sautmer [2015] FCAFC 20
Telecommunications Pty Ltd (No 2) [2011] FCAFC 141
The MTGI Trust v Johnston (No 2) [2016] FCAFC 190
Division: Division 2 General Federal Law Number of paragraphs: 22 Date of last submission/s: 12 May 2023 Date of hearing: 10 May 2023 Place: Brisbane The Applicant: No appearance Counsel for the Respondents: Mr T Spence Solicitor for the Respondents: Saines Legal ORDERS
BRG 137 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: WAYNE PETER DEBUS
Applicant
AND: CONDOR ENERGY SERVICES LIMITED
First Respondent
CARTER CHISHOLM DUMONT (CEO)
Second Respondent
order made by:
JUDGE EGAN
DATE OF ORDER:
1 JUNE 2023
THE COURT ORDERS THAT:
1.The Applicant is liable for the payment to the First Respondent of the First and Second Respondent’s costs of and incidental to the proceeding BRG137/2020, on an indemnity basis, as and from 7 July 2020 until 23 December 2022.
2.The Applicant pay the First Respondent’s costs to be agreed, or failing agreement, to be taxed pursuant to the provisions of r. 22.10 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Egan
Introduction
The trial of this matter took place over four days from 30 May 2022 until 1 June 2022, and on 28 September 2022. The applicant had commenced proceedings on 3 March 2020. He sought orders pursuant to s. 545 of the Fair Work Act 2009 (Cth) (‘the Act’) for reinstatement, compensation and an apology.
The Judgment of the Court dismissing the Application was handed down on 23 December 2022.
On 30 January 2023, the respondent filed an Application in a Proceeding seeking the following order:
“1. That the Applicant is liable for payment to the First Respondent of the First and Second Respondent’s costs of and incidental to the proceeding BRG137/2020, on an indemnity basis:
a. as and from 3 March 2020 to 23 December 2022; and
b. until the handing down of this judgment.”
It was relevantly deposed on behalf of the respondent:
(a)that a Calderbank Offer was sent to the applicant by way of a without prejudice letter on 7 July 2020 (First Calderbank Offer).
(b)That a second Calderbank Offer was sent to the applicant by way of a without prejudice letter on 17 May 2021 (Second Calderbank Offer).
The First Calderbank Offer: [1]
[1] See Annexure CD-2 to Dumont Affidavit filed on 20 January 2023.
(a)Advised the Applicant of the deficiencies in his claim against the First and Second Respondents;
(b)Advised the Applicant of the deficiencies in his claims against Ms Erin Duffin and Ms Kim Schulz (then the Third and Fourth Respondents);
(c)Put the Applicant on notice that, in the event he was unsuccessful in his Application, the Respondents would be seeking a costs order on an indemnity basis;
(d)Made a without prejudice offer (save as to costs) to settle on the following terms:
(i)The Applicant discontinue the proceeding; and
(ii)Both parties to bear their own legal costs.
(iii)Advised that the without prejudice offer was made in accordance with the principles of Calderbank v Calderbank [1975] 3 All ER 333.
The First Calderbank Offer was relevantly as follows:
“Without prejudice save as to costs
Dear Mr Debus
RE: Notice of intended Costs Application
BRG137/2020 -Wayne Peter DEBUS v Condor Energy Services Limited & Ors
The purpose of this letter is to draw to your attention to a number of concerns regarding your pleadings, and to place you on notice regarding the costs application the Respondents intend to make against you.
Background
We are instructed as follows:
1. You have alleged that the Respondents terminated your employment in contravention of a general protections provisions of the Fair Work Act 2009 (Cth).
2. In short, your claim is that you allegedly suffer from a disability or mental health condition and this was the operative or substantive reason for your dismissal. Unfortunately you have failed to:
a. particularise the basis of the alleged breaches; or
b. provide any evidence to substantiate your allegations.
3. We are instructed that during the course of your employment:
a. you did not disclose to any of the Respondents, that you suffered from or had been diagnosed with any mental health conditions, prior to 11 November 2019;
b. you allege that the decision to terminate your employment was made as a result of you suffering a "mental health episode". Not only have you failed:
i. to disclose a diagnosis for your purported condition but you have also failed to provide details of the "episode" that occurred;
ii. you have not relied on any specific details or evidence to establish a link between this event and your dismissal.
c. The evidence and contemporaneous notes, emails and statements from various employees of the First Respondent (which were made available to you during the Fair Work Commission conciliation process) demonstrate that your claims of discrimination are unsustainable and without merit, as they establish:
i. the decision to terminate your employment during the probationary period occurred before 11 November 2019, and therefore your claimed mental health condition could not have been relevant to the decision to terminate your employment;
ii. the reason for the termination of your employment was due to inappropriate behaviour, which was the subject of a number of separate complaints by the First Respondent's employees and was perceived by the complainants as threatening; and
iii. the Second Respondent provided you with two verbal warnings and you were put on notice that your employment may be terminated should the inappropriate behaviour continue.
4. Furthermore, there are no foundations for your allegations against the Third and Fourth Respondents:
a. You have claimed that it was the Second Respondent who dismissed you;
b. You have admitted the Third and Fourth Respondents were not in the meeting at the time of your dismissal nor were they decision makers;
c. You have no evidence or documentation to establish any involvement of the Third or Fourth Respondent in your dismissal.
In light of the above, the Respondents consider that your claim of a breach of the general protections provisions of the Fair Work Act 2009 (Cth) are unsustainable.
Costs
Section 570(b) of the Fair Work Act 2009 (Cth) gives the court discretion to award costs against a party if it is satisfied that a party engaged in an unreasonable act or omission and that act or omission caused the other party to incur costs.
(2) The party may be ordered to pay the costs only if:
(a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or
(b) the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs; or
(c) the court is satisfied of both of the following:
(i) the party unreasonably refused to participate in a matter before FWA;
(ii) the matter arose from the same facts as the proceedings.
It is the Respondents opinion that on your current pleadings your case against them is vexatious and without reasonable cause. Should your second attempt at the pleadings against the Respondents remain wanting, we will seek the Respondents instructions to make an application under rule 13.10 of the Federal Circuit Court Rules 2001 (Cth):
The Court or a Registrar may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court or the Registrar is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim: or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.
In the highly likely event that our client is successful in its foreshadowed application to dismiss all or part of your claim, the Respondents place you on notice that it will be looking to recover its legal costs from you on an indemnity basis.
With all due respect, we strongly suggest you seek legal advice in relation to your prospects in this matter, as the likely costs against you will be in excess of $50,000.00.
Offer
We are instructed to make the following without prejudice offer in full and final settlement of all claims you may have against the Respondents, as follows:
1. The Applicant will discontinue proceeding number BRG 137/2020 before the Federal Circuit Court; and
2. On the Applicant complying with clause 1, the Respondents agree not to make a costs application against the Applicant in matter BRG 137/2020.
This offer is subject to the parties executing a Deed of Release which include the following provisions:
1. The Parties will enter into consent orders requesting that the matter be dismissed without costs.
2. the Applicant releases and forever discharges the Respondents, their directors, related entities, assignees or successors from any liability past, present or future from all claims, suits, demands, actions or proceedings arising out of or connected with the Applicant's employment, dismissal, or the proceedings, including but not limited to the cessation of the employment.
3. The Respondents release and forever discharge the Applicant from any liability past, present or future from all claims, suits, demands, actions or proceedings arising out of or connected with the Applicant's employment, dismissal, or the proceedings, including but not limited to the cessation of the employment.
4.Nothing in the Deed of Release will affect any claims, suits, demands, actions or proceedings the Applicant has or may have under statute, an industrial instrument or common law for a work-related injury, illness, disease or death, or under superannuation legislation.
5. The Applicant and the Respondents will keep the provIs1ons of these terms of settlement confidential, provided that the Applicant and the Respondents may disclose the provisions to their legal or financial advisers or any other person that by law must be informed of the provisions.
6. Neither the Applicant nor the Respondents (restricted to its senior managers) will disparage or denigrate the other.
7. Each party to bear their own legal costs.
The above offer is open for acceptance until 5 pm on 14 July 2020, at which point it will lapse. If it is accepted, we will provide you with the proposed Deed of Release for your consideration and execution.
This offer is made in accordance with the principles of Calderbank v Calderbank [1975] 3 All ER 333. If you do not accept the above offer and this matter proceeds to a hearing, the Respondents (if successful) reserve their rights to seek costs from you on an indemnity basis.
Moving Forward
Due to the implications of this letter, we again recommend that you seek urgent legal advice.
Please contact me should you have any queries.
Yours faithfully
Nigel Saines, Special Counsel”
The First Calderbank Offer was rejected by the applicant in the following terms (First Rejection Email) [2] :
[2] See Annexure CD-3 to Dumont Affidavit.
“Dear Nellie,
Thank you for your email and the associated ‘offer’.
I utterly reject the assertions and claims made by the respondents as contained in the attached ‘offer’ and will not vary my course.
I will contest this matter of costs should I not be successful in prosecuting my case before the Court, however I very much doubt this will be the result.
Continued threats and bullying in this regard will not change my position, so I suggest it stops forthwith.
As I am yet to file my Statement of Claim and associated Affidavit, nor applied for the numerous subpoenas that I intend to utilise, continued assertions that, if I may paraphrase, ‘I don’t have a leg to stand on’ are baseless and do not reflect the facts that I will put before His Honour.
Thanks, but no thanks.
Best regards,
Wayne Debus”
The Second Calderbank Offer was in fulsome terms as follows: [3]
[3] See Annexure CD-4 to Dumont Affidavit.
“Without prejudice save as to costs
Dear Mr Debus
RE: Notice of intended Costs Application
BRG137/2020-Wayne Peter Debus v Condor Energy Services Limited & Ors
The purpose of this letter is to place you on notice regarding the costs application the Respondents intend to make against you.
Background
1. As outlined to you in our previous letter dated 7 July 2020, the Respondents consider that your case against them is vexatious and without reasonable cause.
2. Despite the numerous opportunities given to you to replead your matter, the Respondents consider that you have continually failed to provide any evidence to establish:
(a) a link between your termination and your disability or mental health condition (if any)
(b) that the Second Respondent had any knowledge of your disability or mental health condition (if any) prior to 11 November 2021.
Costs
Section 570(b) of the Fair Work Act 2009 (Cth) gives the court discretion to award costs against a party if it is satisfied that a party engaged in an unreasonable act or omission and that act or omission caused the other party to incur costs.
(2) The party may be ordered to pay the costs only if:
(a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or
(b) the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs; or
(c) the court is satisfied of both of the following:
(i) the party unreasonably refused to participate in a matter before FWA;
(ii) the matter arose from the same facts as the proceedings.
In the highly likely event that you are unsuccessful in your application against our clients, the Respondents place you on notice that they will be looking to recover their legal costs from you on an indemnity basis.
Our client's offer
We are instructed to make the following without prejudice offer in full and final settlement of all claims you may have against the First and Second Respondent, as follows:
1.The Applicant will discontinue proceeding number BRG 137 /2020 before the Federal Circuit Court; and
2. On the Applicant complying with the above clause 1, the Respondents agree to pay the Applicant the equivalent of:
a. $5,000 gross, as an ex-gratia payment;
b. any accrued but unpaid wages owing to the date of termination; and
c. any accrued but unpaid statutory leave entitlements owing to the date of termination.
(the Settlement Amount)
3. Additionally, on the Applicant complying with the above clause 1, the Respondents agree not to make a costs application against the Applicant in the matter BRG 137 /2020.
This offer is subject to the parties executing a Deed of Release which will include the following provisions:
1. The Parties will enter into consent orders requesting that the matter be dismissed without costs.
2. The Applicant releases and forever discharges the Respondents, their directors, related entities, assignees or successors from any liability past, present or future from all claims, suits, demands, actions or proceedings arising out of or connected with the Applicant's employment, dismissal, or the proceedings, including but not limited to the cessation of the employment.
3. The Respondents release and forever discharge the Applicant from any liability past, present or future from all claims, suits, demands, actions or proceedings arising out of or connected with the Applicant's employment, dismissal, or the proceedings, including but not limited to the cessation of the employment.
4. Nothing in the Deed of Release will affect any claims, suits, demands, actions or proceedings the Applicant has or may have under statute, an industrial instrument or common law for a work-related injury, illness, disease or death, or under superannuation legislation.
5. The Applicant and the Respondents will keep the prov1s1ons of these terms of settlement confidential, provided that the Applicant and the Respondents may disclose the provisions to their legal or financial advisers or any other person that by law must be informed of the provisions.
6. Neither the Applicant nor the Respondents (restricted to its senior managers) will disparage or denigrate the other.
7. Each party to bear their own legal costs.
The above offer is open for acceptance until 5 pm on Friday 21 May 2021, at which point it will lapse. If it is accepted, we will provide you with the proposed Deed of Release for your consideration and execution.
This offer is made in accordance with the principles of Calderbank v Calderbank [1975) 3 All ER 333. If you do not accept the above offer and this matter proceeds to a hearing, the Respondents (if successful) reserve their rights to seek costs from you on an indemnity basis.
Please contact me should you have any queries.
Yours faithfully
Nigel Saines, Special Counsel”
The Second Calderbank Offer was rejected by the applicant in the following terms (Second Rejection Email) [4] :
[4] See Annexure CD-5 to Dumont Affidavit.
“Dear Mr. Saines
Thank you for your letter.
I hereby confirm that I AM NOT prepared to settle on such ludicrous terms.
Make your case for costs, and I shall continue to pursue a trial remedy.
I guess you consider yourself to be more qualified than the presiding Judge – who in on record as confirming my reasonable prospects of success?
Please inform your clients that continued harassment on this point is futile. I will see this matter to its completion regardless of potential costs.
See you all in Court.
Best regards
Wayne Debus”
Relevant Authorities
During the course of the trial the applicant made a number of allegations of dishonesty against the respondent’s witnesses. None of those allegations were accepted by the Court. The Court found that there were many instances during the course of the applicant’s employment with the respondent when he had exhibited unacceptable behaviour. The Court found that no one employed by the respondent relevantly knew, or suspected, that the applicant was suffering from any mental disability, either prior to the commencement of his employment, or otherwise during the course of his employment.
The Court did not accept any of the applicant’s evidence relevant to his claims as to why he was dismissed from his employment.
Section 570 of the Act provided as follows:
“Section 570 – Costs only if proceeding instituted vexatiously etc.
(1) A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.
Note: The Commonwealth might be ordered to pay costs under section 569. A State or Territory might be ordered to pay costs under section 569A.
(2) The party may be ordered to pay the costs only if:
(a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or
(b) the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs; or
(c) the court is satisfied of both of the following:
(i)the party unreasonably refused to participate in a matter before the FWC;
(ii)the matter arose from the same facts as the proceedings.”
In the light of the making of Calderbank Offers, s. 570(2)(a) and (b) of the Act are of particular relevance.
In Australian Workers Union v Leighton Contractors Pty Ltd (No 2) [2013] FCAFC 23 at [7] the Full Court held:
“[7]In Khiani v Australian Bureau of Statistics [2011] FCAFC 109 (“Khiani”) the Full Court endorsed the summary of the authorities provided by Reeves J in Nimmo, in the matter of an application for an inquiry relating to an election for an office in the Australian Education Union (NT Branch) (No 2) [2011] FCA 728 at [27]- [30]. In our view the authorities establish the following principles:
(1)The purpose or policy of the section is to free parties from the risk of having to pay their opponents’ costs in matters arising under the Act, while at the same time protecting those parties who are forced to defend proceedings that have been instituted vexatiously or without reasonable cause.
(2)It follows from the protection offered by s 570(2) that a person will rarely be ordered to pay the costs of a proceeding. But it is not necessary to prove that there are exceptional circumstances warranting the making of an order: Spotless Services Australia Limited v The Hon Senior Deputy President Jeanette Marsh [2004] FCAFC 155 (“Spotless”) at [12]–[13] (to the extent that the Full Court in Council of Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission (2006) 156 FCR 275 (“Kangan”) held otherwise, we would respectfully disagree).
(3)The relevant question is whether the proceeding had reasonable prospects of success at the time it was instituted, not whether it ultimately failed: R v Moore; Ex parte Federated Miscellaneous Workers’ Union of Australia (1978) 140 CLR 470 at 473 per Gibbs J; Kangan at [60]. In Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257 at 264-5 (approved in Kangan) Wilcox J said
If success depends on the resolution in the applicant’s favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding, as being “without reasonable cause”. But where, on the applicant’s own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause.”
In Trustee for The MTGI Trust v Johnston (No 2) [2016] FCAFC 190 at [8] the Full Court held:
“[8]Section 570 of the FW Act confers discretion on the Court to order costs in Fair Work matters where proceedings were instituted vexatiously or without reasonable cause. Not only must this discretion be exercised judicially according to the terms defining it, it must be exercised with caution because of the exceptional nature of the power in an otherwise no-costs jurisdiction. The case for its exercise should be clearly demonstrated: Saxena v PPF Asset Management Ltd [2011] FCA 395 at [6]. As Mortimer J observed (correctly, in our opinion) in Ryan v Primesafe [2015] FCA 8 at [64]:
The reason for caution is the potential for discouraging parties’ pursuit in a complete and robust way of the claims for contravention which they seek to make under the Fair Work Act, or the defence of such claims. The policy behind s 570 is to ensure that the spectre of costs being awarded if a claim is unsuccessful does not loom so large in the mind of potential applicants (in particular, in my opinion) that those with genuine grievances and an arguable evidentiary and legal basis for them are put off commencing or continuing proceedings. It is an access to justice provision. Insofar as it operates to the benefit of respondents, it is designed to ensure respondents feel free to pursue arguable legal and factual responses to the claims made against them.
(cf Barker J in Pettit v Evolution Mining Ltd [2016] FCA 1304 at [62].)”
It was submitted on behalf of the respondent that the applicant’s case was instituted vexatiously and commenced without reasonable cause within the meaning of s. 570(2)(a) of the Act. In that regard, in Australian International Pilots Association v Qantas Airways Ltd (No 3) [2007] FCA 879 at [36] it was held as follows:
“[36] In dealing with an application for costs under s 347(1) of the Act, in Standish v University of Tasmania [1989] FCA 166; (1989) 28 IR 129, Lockhart J was called on to decide whether the proceeding had been instituted "without reasonable cause". His Honour drew a distinction between the pursuit of an argument which does not succeed and the institution of a proceeding which is misconceived in the sense of being incompetent: see at 138-9. This distinction may, in my view, assist in determining whether conduct is unreasonable for the purposes of s 824(2). The prosecution of any incompetent or hopeless case can be regarded as "an unreasonable act" within the meaning of s 824(2). Conversely, in my opinion, the pursuit of a contentious, and ultimately unsuccessful, argument is not an unreasonable act. In my view the applicant’s defence of its pleadings in the first strike-out application falls into the latter category.”
In the present matter, the Court finds that though unsuccessful, the applicant’s claim was not misconceived in the sense of being incompetent. The applicant’s claim fell within the second limb of the Pilots Association Case, in that it was the pursuit of a contentious but ultimately unsuccessful claim. To that extent it was not unreasonable so as to fall foul of s. 570(2)(a) of the Act.
In the alternative, it was submitted on behalf of the respondent that the applicant’s failure to accept an offer of compromise was in itself conduct on the part of the applicant which was unreasonable under s. 570(2)(b) of the Act. It has often been acknowledged that a failure to accept a reasonable offer of compromise could constitute an unreasonable act for the purposes of s. 570(2)(b) of the Act. [5]
[5] Melbourne Stadiums Ltd v Sautmer [2015] FCAFC 20 at [166]; Trustee for The MTGI Trust v Johnston
In the present matter, the applicant sent his First Rejection Letter some 20 minutes after he received the First Calderbank Offer. The applicant sent his Second Rejection Letter some 10 minutes after he received the Second Calderbank Offer. Each rejection was made in an offended tone and in robust terms. The applicant expressed his rejection of such offers in terms of his intending to proceed with his claims irrespective of the claimed prospect of adverse findings being made against him. Such correspondence on the applicant’s part indicated that he had not closely and attentively considered what the consequences might be if he were to not accept the offers, and subsequently have his claims rejected by the Court. In Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No 2) [2011] FCAFC 141 at [19] the Full Court held:
“[19]… The purpose of the principles governing Calderbank offers and offers of compromise in accordance with court rules is to ensure that, when one party makes another an offer that contains a genuine element of compromise, the recipient of the offer is compelled to give real consideration to the costs and benefits of prosecuting its claim by reason of the prospect of suffering an indemnity costs order should its failure to accept the offer prove unreasonable.”
The First Calderbank Offer made it clear that the applicant’s claims that his dismissal from the employment of the respondent due to a mental health disability was without substance because no one in the employ of the respondent knew that he suffered from any such disability. The respondent was asserting that which was ultimately found by the Court to be the case. The applicant must have known that the success or otherwise of his case was in large part dependent upon his proving his claims to that effect. The Court finds that for the applicant to have continued to press on with his claims in the face of such denials was at the time unreasonable, and that it remained so until the handing down of judgment. The applicant ought to have weighed up and balanced the claims being advanced on behalf of the respondent against the claims made by him in a considered and measured way. He failed to do that. The provisions of s. 570(2)(b) of the Act had accordingly been satisfied. The applicant ought to have accepted the First Calderbank offer.
In the exercise of the Court’s discretion, the Court finds that the first respondent is entitled to its and the second respondent’s costs of and incidental to the proceeding, on the indemnity basis, as and from 7 July 2020 (that being the date of the making of the First Calderbank Offer and the date of the First Refusal Letter) until 23 December 2022, that being the date of the handing down of judgment.
Those costs are to be as agreed, or failing agreement, as assessed.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 1 June 2023
(No 2) [2016] FCAFC 190 at [23]
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